[00:00:00] Speaker 01:
May it please the Court.

[00:00:02] Speaker 01:
Your Honor, this is a whistleblower protection Enhancement Act retaliation case, as the Court is aware.

[00:00:08] Speaker 01:
And going to the issue of the per diem and consequential damages, I would point out that in the TDY status, the level... $363,000 seems like an awfully large number.

[00:00:23] Speaker 01:
It does, Your Honor.

[00:00:24] Speaker 01:
Quite frankly, it does.

[00:00:25] Speaker 03:
Doesn't he have to show that he actually suffered those damages?

[00:00:28] Speaker 01:
Your Honor, if he was being paid the per diem, he doesn't have to provide receipts every time, and I think that goes to the crux of this situation.

[00:00:39] Speaker 01:
Mr. Focart put Mr. Hickey, the retaliator that the A.J.

[00:00:44] Speaker 01:
found was the retaliator, put Mr. Hickey in a situation that was intended to cause distress.

[00:00:51] Speaker 01:
This was a position known as the punishment group within the agency.

[00:00:57] Speaker 01:
put into a situation called highway therapy where he was being sent to commute into Boston every day from his regular workstation.

[00:01:06] Speaker 01:
Then sent around as a 21-year employee, 23-year employee being required to issue summonses and subpoenas on people in Boston and then commuting home.

[00:01:17] Speaker 01:
The travel into and out of Boston, and I would just submit the traffic, is not the same as traveling in and out of the Rhode Island location where he was in.

[00:01:25] Speaker 01:
was eating 13, 14 hours a day such that Mr. Hickey on his GS salary, on his GS 13 salary, wasn't able to go to a hotel every night and pay for this for 19 months and wasn't able, it would be still going on if the A.J.

[00:01:42] Speaker 01:
hadn't stopped it.

[00:01:43] Speaker 01:
And the A.J.

[00:01:44] Speaker 01:
stopped it because Mr. Focart testified below that he was going to... Was he reassigned to this?

[00:01:50] Speaker 01:
He was put on a T.D.Y.

[00:01:51] Speaker 01:
status, a temporary duty status.

[00:01:54] Speaker 01:
It put Mr. Hickey in essentially a regulatory no man's land.

[00:02:00] Speaker 01:
I've been trying to think of the correct word for what happens when you've got a hegemony or rubric of agency regulations that are not necessarily perfectly aligned.

[00:02:11] Speaker 01:
But what happens here is Mr. Hickey was forced to work outside of his regular commuting area 62 miles away.

[00:02:19] Speaker 01:
He wasn't within the immediate commuting area such that he would be entitled

[00:02:24] Speaker 01:
to the local per diem benefits.

[00:02:28] Speaker 01:
But Mr. Focart, the retaliator, made the discretionary decision that because he wasn't outside of the 50 miles for 12 hours a day because it encompassed traveling, that he wasn't going to exercise the discretion to allow the per diem, even though Mr. Focart made that same decision for someone who went to Springfield, which is 99 miles away, and allowed that person.

[00:02:52] Speaker 01:
The dilemma and the conundrum that Mr. Focart was creating here for the person that the court determined this was purposeful retaliation was putting him in a situation where he was not getting reimbursed for the travel because it was in a government vehicle, but he was being put in a situation where Mr. Focart knew that he was working 15, 16 hours a day and travel, et cetera, and serving summonses.

[00:03:18] Speaker 01:
And he was being forced to

[00:03:21] Speaker 01:
have minimal interaction with his family, have minimal time off.

[00:03:25] Speaker 02:
Doesn't this come down to whether or not the administrative judge understood the agency travel handbook correctly?

[00:03:32] Speaker 02:
It does, but I think that the... And if the statement about being away from a local community area means 50 miles, then what that would mean is, as a technical matter, the person

[00:03:49] Speaker 02:
Mr. Hickey had to travel 12 or 13 miles outside of the local commuting area every day.

[00:03:54] Speaker 02:
And then it would stand to reason that the board, therefore, or the AJ made a reasonable finding that if he was only traveling 12 or 13 miles outside the commuting area to and from Boston every day, then it stands to reason that everything was happening under 12 hours in terms of you count that commuting time of 12, 13 miles every day plus the

[00:04:19] Speaker 02:
nine, ten hours of work that would come in under 12 hours.

[00:04:23] Speaker 01:
Your Honor, that is correct, Judge Chen.

[00:04:25] Speaker 01:
I would submit though that the issue is not clear whether you have to be outside the commuting area for 12 hours and say, you know, you spend three hours traveling and then you work 12 hours and then you spend three hours back.

[00:04:38] Speaker 01:
That's compensable versus if you spend two hours traveling, 15 hours there, forgive my numbers, it's whether you have to be outside of 50 miles

[00:04:48] Speaker 01:
for 12 hours and then come back, or whether you can put someone in the situation where you say, come back after 11 hours, and then you preclude them from getting the TDY benefit, or the per diem benefits.

[00:04:59] Speaker 04:
I think... Was there any evidence, Rick, I understand the numbers, you know, 12 miles versus 50 miles, but was there any evidence about the amount of time it takes to go those 12 miles in Boston, as opposed to the rest of the process?

[00:05:15] Speaker 01:
No, we didn't.

[00:05:16] Speaker 01:
Break it out that way, I will tell you the last 12 miles of any commute into a major metropolitan center, as anyone who's commuted into DC knows is the most punishing part.

[00:05:27] Speaker 01:
And that is the purpose of this punishment group.

[00:05:30] Speaker 01:
I would submit that the time and travel status in the agencies... But it's under any reasonable measure.

[00:05:35] Speaker 03:
It's not going to be more than 12 hours for those last 12 miles.

[00:05:39] Speaker 01:
Certainly not.

[00:05:39] Speaker 01:
No, sir.

[00:05:40] Speaker 01:
But the agency's premium pay guide is instructive here, and it says that

[00:05:45] Speaker 01:
the time actually traveling between points is to be considered in terms of what their travel time is.

[00:05:53] Speaker 01:
And that's the appendix of 399, I mean 319, and that says that time and travel status begins when you leave your official duty station and you get to the point of destination.

[00:06:04] Speaker 01:
In this case, that means that the 60 miles between the Providence Station and the Boston Station would be time and travel.

[00:06:12] Speaker 02:
Does the premium pay guide have anything to do with temporary

[00:06:15] Speaker 02:
duty stations?

[00:06:16] Speaker 01:
It's part of the premium pay benefit or premium pay regulations.

[00:06:22] Speaker 02:
I don't think these necessarily... My understanding is that the premium pay guide is directed to something else, whereas the agency travel guide encompasses many things, including what to do about temporary duty stations.

[00:06:34] Speaker 01:
It does, Your Honor, and I would point out that one of the ironies of this, and I think it's quite frankly a sloppy plan that DHS has, because the

[00:06:46] Speaker 01:
The TDY per diem plan refers the, it refers at, and I'll just simply point to the appendix.

[00:07:00] Speaker 01:
The temporary duty in the ICE travel handbook provides information or direction to go to.

[00:07:06] Speaker 01:
Where, where in the appendix?

[00:07:08] Speaker 01:
Appendix 260, where it sets forth the 50 miles, the 50 mile location.

[00:07:17] Speaker 01:
And right underneath the paragraph at A1A, it says, for further information on local travel, see Chapter 4.

[00:07:25] Speaker 01:
And Chapter 4 is found at Appendix 277, which says that if you're within the 50 miles and you're working more than 12 hours a day and you incur the meals and incidental expenses,

[00:07:46] Speaker 01:
and you remain in travel status for more than 12 hours, and you're within the 50 hours, you're entitled to per diem.

[00:07:51] Speaker 01:
And what the agency has argued here is he wasn't local because they were pushing him outside of the 50 miles, so he doesn't get the local pay, which is clearly contemplating this sort of situation.

[00:08:00] Speaker 01:
So they're saying Focart put him in between these two positions.

[00:08:05] Speaker 01:
And that, I think, if it is not compensatory as income, is intended to put Mr. Hickey in a situation where he would incur compensatory damages.

[00:08:16] Speaker 01:
evidence of retaliation.

[00:08:18] Speaker 01:
This was done to make his life hard.

[00:08:19] Speaker 01:
The A.J.

[00:08:20] Speaker 01:
below found that fact.

[00:08:22] Speaker 01:
And the A.J.

[00:08:23] Speaker 01:
made the finding.

[00:08:24] Speaker 03:
We get that he was retaliated against, but you still have to have a theory of consequential damages under 1214 and 1221 that entitles him to damages.

[00:08:35] Speaker 03:
And it seems like you're relying on the T.D.Y.

[00:08:38] Speaker 03:
statutes and regulations.

[00:08:39] Speaker 01:
I am for the per diem.

[00:08:41] Speaker 01:
But I would submit that even if this court as a matter of law didn't find the

[00:08:47] Speaker 01:
time and travel status in the premium pay guide instructive as to whether in the when you get out of the local area instructive or informative as to when the time to start considering the 12 hours that clock should run.

[00:09:01] Speaker 01:
If that was the case Mr. Focart was doing this to put him in the no man's land between the per diems then that would go to compensatory damages because you Mr. Focart was doing this to punish Mr. Hickey and

[00:09:15] Speaker 01:
His testimony below was, I was doing it and I was going to keep him in that position until he learned his lesson.

[00:09:21] Speaker 03:
Do you want to address the attorney's fee issue?

[00:09:23] Speaker 01:
Yes, your honor.

[00:09:24] Speaker 01:
The attorney's fee issue, I believe, is the simplest issue.

[00:09:29] Speaker 01:
Quite frankly, in Swanson versus DLA, the board below, or the board said that in order to prove the fee rate, we can either submit our retainer agreement, which we did,

[00:09:43] Speaker 01:
And we put forward proof of our customary billing rates, which we did.

[00:09:46] Speaker 01:
We put forward our proof of billing rates.

[00:09:49] Speaker 03:
Now, I mean, the board is allowed, if it gives a good reason, to reduce fees from fee arrangements, right?

[00:09:56] Speaker 03:
Yes, it is.

[00:09:56] Speaker 03:
You're not entitled to get exactly what you billed.

[00:09:59] Speaker 03:
It's the ceiling generally, but they're allowed to reduce it if they give a good reason.

[00:10:04] Speaker 01:
Yes, sir.

[00:10:04] Speaker 03:
And I assume your argument is that this is what you charged in a different case in a different situation is in a good enough reason.

[00:10:13] Speaker 01:
No, sir.

[00:10:14] Speaker 01:
Not only, yes, I agree with that.

[00:10:17] Speaker 01:
But isn't it further that the other case was constrained by local rules?

[00:10:24] Speaker 01:
That's what I was getting to.

[00:10:25] Speaker 01:
And Maryland, as this court, I believe, should be aware, has local rules that cap rates.

[00:10:31] Speaker 01:
And so we don't bill at those rates.

[00:10:33] Speaker 01:
We are artificially constrained when we are there.

[00:10:36] Speaker 01:
And as we've submitted in our decisions and as the court in those decisions said,

[00:10:40] Speaker 01:
We understand you bill at different rates.

[00:10:41] Speaker 01:
What's the difference between what you billed at and the rate, the Maryland rate?

[00:10:45] Speaker 01:
It's about $70 an hour off the top of my head.

[00:10:50] Speaker 03:
So if the board had wanted to cut it from your billed rate to that rate, they would have had to come up with some other explanation in your view of why your rate was too much for this type of litigation, blah, blah, blah, or otherwise unreasonable.

[00:11:04] Speaker 01:
My firm, because we're in the district and because we have a national practice, we bill at laffy rates.

[00:11:09] Speaker 01:
And Laffey rates, as the court is aware, go up each year.

[00:11:13] Speaker 01:
We typically don't raise the rates on clients each year commensurate with it, but when the retainer rates go out, we bill at Laffey rates and then consistent with the... We don't have the fee agreement here in the record, do we, between you and your clients?

[00:11:30] Speaker 01:
I don't know if it's in the appendix, but it was submitted to the court below or to the A.J.

[00:11:35] Speaker 01:
who read it and said, I see this is what you charged him, and Mr. Hickey did in fact pay those hours.

[00:11:41] Speaker 02:
Why isn't it just the most, the best, singular, most reasonable thing to do is that the attorney fee should be, should follow the fee agreement that Mr. Hickey

[00:11:54] Speaker 01:
That's what the MSPB says.

[00:11:56] Speaker 01:
It puts forward what the rates are, and it says the best evidence is the fee agreement.

[00:12:01] Speaker 01:
And we are arguing that if it did not, if the A.J.

[00:12:05] Speaker 01:
did not give us laughing rates, then he should have at least given us the fee agreement, because under Missouri versus Jenkins, you're entitled to, Supreme Court President, you're entitled to present value rates.

[00:12:16] Speaker 01:
So when you have a case that you signed up 10 years ago, you're not getting paid at the 10 years ago rates.

[00:12:21] Speaker 01:
But even, even

[00:12:22] Speaker 01:
if the court didn't give us the Missouri versus Jenkins rates, a Supreme Court decision.

[00:12:28] Speaker 01:
The board precedent is that we're entitled to, or dictates that it's the retainer rates that should govern.

[00:12:38] Speaker 01:
And just going out and finding a venue that pays us less, that's discounting the fact that there are venues that pay us more.

[00:12:44] Speaker 01:
If we were going to Manhattan, we're going to get more.

[00:12:46] Speaker 01:
And to select the venue is totally... What was the difference between the Laffey rates and the retainer rates?

[00:12:52] Speaker 01:
The Laffey rate, at the time this decision was issued, I think it's about $50 or $60 per hour, but the rates when the case was signed up, these were the Laffey rates.

[00:13:03] Speaker 01:
Uh-huh.

[00:13:04] Speaker 02:
Okay.

[00:13:06] Speaker 02:
So your fee agreement didn't say, Mr. Hickey, you're going to pay me at the Laffey rate, whatever the Laffey rate may be in the given year that I'm still working for you.

[00:13:16] Speaker 01:
No, Your Honor.

[00:13:16] Speaker 01:
It just said $4.90 an hour.

[00:13:19] Speaker 01:
cite the laffy rates, but because our clients, our individuals, they typically are struggling to pay our rates.

[00:13:27] Speaker 01:
And so upping them when the laffy rates go up, I think we've made a business decision that that's probably more than the individuals can likely handle.

[00:13:38] Speaker 01:
I would reserve my time at this time.

[00:13:55] Speaker 00:
morning may it please the court.

[00:13:58] Speaker 03:
Can you address the attorney fees issue first?

[00:13:59] Speaker 03:
Certainly Your Honor.

[00:14:00] Speaker 03:
It seems really troubling that the board used an unrelated fee rate from a litigation where it was capped in an area that wasn't this case.

[00:14:12] Speaker 00:
Your Honor, so I want to make several points with respect to that question.

[00:14:16] Speaker 00:
The first has to do with what the administrative judge had in front of him and so why he went looking.

[00:14:23] Speaker 00:
The second has to do with

[00:14:25] Speaker 00:
the actual Maryland rates.

[00:14:28] Speaker 00:
First, the administrative judge pointed out that, as I believe Your Honor did, the MSPB's precedent says that the fee agreement rate is the max possible reasonable rate.

[00:14:41] Speaker 00:
Anything above that is presumptively unreasonable.

[00:14:45] Speaker 03:
Sure, but if they're going to go below that, they have to have a rational argument as to why to go below that, which would be something along the lines of

[00:14:54] Speaker 03:
Well, that's too high for this area or the light, but that's not what he looked at.

[00:15:00] Speaker 03:
If this case had been tried in Maryland, maybe that would have been reasonable, but this was a D.C.

[00:15:05] Speaker 03:
firm.

[00:15:06] Speaker 03:
Was this out of the Boston regional office?

[00:15:08] Speaker 00:
It was, Your Honor.

[00:15:09] Speaker 03:
But there was no suggestion.

[00:15:11] Speaker 03:
Did the government argue that the Boston rates are lower than the D.C.

[00:15:14] Speaker 03:
rates and they should apply the Boston rates?

[00:15:16] Speaker 00:
No, Your Honor, and I don't believe there's anything in the record suggesting what the Boston rates

[00:15:21] Speaker 04:
Did the government argue that Maryland rates should apply?

[00:15:24] Speaker 00:
No, Your Honor.

[00:15:25] Speaker 03:
It seems pretty arbitrary to go pluck a number from a different forum that this case wasn't in and his lawyers weren't in.

[00:15:34] Speaker 00:
Your Honor, the administrative judge indicated that all he had in front of him, barring the justifications for these higher Lafay rates, was the fee agreement.

[00:15:46] Speaker 00:
And he was under an obligation to determine whether or not that rate itself was reasonable.

[00:15:50] Speaker 00:
So he went... Which rate?

[00:15:51] Speaker 03:
The Laffey rate?

[00:15:52] Speaker 00:
No, Your Honor, the fee agreement rate.

[00:15:55] Speaker 03:
Right.

[00:15:56] Speaker 03:
And so he went to, evidently... And the fee rate was lower than the Laffey rate, which is customarily applied in D.C.

[00:16:02] Speaker 03:
So why wasn't it reasonable?

[00:16:04] Speaker 03:
Well, as Your Honor indicated, the... Why did he find the fee rate unreasonable?

[00:16:12] Speaker 00:
Your Honor, there isn't...

[00:16:16] Speaker 00:
There is no presumption that the fee agreement is a reasonable rate.

[00:16:22] Speaker 00:
It is incumbent upon the administrative judge to determine what the reasonable rate is, given the evidence in front of him, a piece of which is the fee agreement.

[00:16:31] Speaker 00:
Another piece of that is what the firm charges for cases in similar areas of law in similar communities.

[00:16:41] Speaker 04:
But Maryland's not a similar community, is it?

[00:16:44] Speaker 03:
Well, Your Honor, so looking at the... I mean, this MSPB judge, I don't know how long he or she's been on the bench, but most of them are familiar with the laughing matrix, and most of them are familiar with who's a DC firm or not, and then that's traditionally the rate given to DC firms.

[00:17:02] Speaker 00:
First, Your Honor, I would point to the declaration provided by the employment law group in support of their request.

[00:17:11] Speaker 00:
And it indicated, it never specifically said, we typically practice in DC.

[00:17:17] Speaker 00:
It said, we typically charge the Laffey fees, and we customarily practice, or we have hundreds of cases spread out across the DC, Maryland, Virginia, I believe Tennessee, Florida, and California.

[00:17:30] Speaker 00:
So Maryland is one of the areas in which this firm evidently customarily practices.

[00:17:36] Speaker 00:
With respect to the Maryland rates... So what?

[00:17:38] Speaker 03:
I mean, if this case were in Maryland, that would be perfectly reasonable.

[00:17:41] Speaker 03:
I mean, what if they said in their declaration that they practice in Oklahoma, and the A.J.

[00:17:48] Speaker 03:
decided to pluck out much lower Oklahoma rates, even though the case was tried in Boston and they're a D.C.

[00:17:53] Speaker 03:
firm?

[00:17:54] Speaker 03:
Wouldn't that be per se arbitrary?

[00:17:57] Speaker 03:
Well, Your Honor, the... Without anything more.

[00:17:59] Speaker 03:
I mean, it's just really, there's no rationale for why Maryland fees are relevant to this case at all.

[00:18:05] Speaker 00:
Your Honor, in this particular scheme, the question is not the rates in which the proceeding takes place.

[00:18:12] Speaker 00:
It's the rates in which the attorney customarily, the community in which the attorney customarily practices.

[00:18:19] Speaker 00:
And the evidence provided... So for a national firm, you can shop?

[00:18:24] Speaker 04:
The judge can shop the communities?

[00:18:27] Speaker 00:
Your Honor, the... I don't know that that would be the right way to put it.

[00:18:34] Speaker 00:
The burden is upon the Petitioner to demonstrate that the fee requested is reasonable.

[00:18:43] Speaker 00:
And in this case, the evidence that the Petitioner presented had to do with fees that were significantly higher than the fee agreement rate, which the administrative judge found effectively unhelpful.

[00:19:00] Speaker 03:
or at least come up with a good reason why the fee rate itself wasn't reasonable.

[00:19:03] Speaker 03:
He didn't find that the fee rate was unreasonable, did he?

[00:19:06] Speaker 03:
He just found that he was kind of not a word laughing matrix.

[00:19:10] Speaker 00:
Your Honor, what the administrative judge was evidently attempting to do was to find cases in which this firm had represented similar clients and charged similar rates.

[00:19:23] Speaker 00:
Now, I do want to get back to the specific District of Maryland local rules.

[00:19:29] Speaker 00:
First of all, I would point out that this is the Southern Division of the District of Maryland, which sits in Greenbelt.

[00:19:37] Speaker 00:
Second, the local rules that describe the attorney's fees provisions, with respect to the rate language that sets these numbers, it is permissive.

[00:19:49] Speaker 00:
It's a guidance.

[00:19:50] Speaker 00:
And it's very clear on that.

[00:19:51] Speaker 00:
There's a very long footnote

[00:19:55] Speaker 00:
indicating that these are just suggested rates.

[00:19:58] Speaker 00:
They're based on fairly old metrics.

[00:20:00] Speaker 04:
If the attorneys believe that they're not appropriate... And did the judge discuss that in any fashion?

[00:20:06] Speaker 00:
Not that I'm... The administrative judge here, no, Your Honor.

[00:20:10] Speaker 00:
But the local rules also indicate that the purpose of these rules is to normalize what the court understands as the reasonable market rates for the area, and that the judges are, first and foremost, bound by precedent

[00:20:25] Speaker 00:
law regulation concerning reasonable attorney's fees?

[00:20:30] Speaker 02:
There's a peculiarity, an additional peculiarity in that there was a recent request for supplemental attorney's fees where this AJ used the fee agreement rate for that.

[00:20:41] Speaker 02:
So doesn't that sound a little arbitrary and capricious that during the first set of attorney fees you went with the Maryland local rule rate and then for the supplemental fees to go after those first set of fees?

[00:20:53] Speaker 02:
Now the AJ is popping up with the fee agreement, right?

[00:20:57] Speaker 00:
Your Honor, I don't think it is an arbitrary decision.

[00:21:01] Speaker 00:
The primary distinction in between those two cases is time frame.

[00:21:07] Speaker 00:
And what the administrative judge noted with respect to the first case was that the Maryland court was with respect to fees from, I believe, 2014 through 2016.

[00:21:18] Speaker 02:
What was the year of the first attorney fees ruling by this AJ?

[00:21:23] Speaker 00:
I believe it was 2015, Your Honor.

[00:21:27] Speaker 00:
And then the second one was the fall of 2017.

[00:21:30] Speaker 00:
And that later case did involve rates at a later time frame, which would have been more applicable to the fee dispute rates in this case.

[00:21:45] Speaker 02:
I also, in this instance, again, in the second- So you get the fee agreement rate when the fee agreement was entered into in 2014.

[00:21:54] Speaker 02:
You get that 2014 agreed upon rate if it's 2017.

[00:21:58] Speaker 02:
But if it's 2015, you don't get that 2014 agreed upon rate.

[00:22:05] Speaker 00:
Your Honor, that wasn't the analysis of, I think, either judge.

[00:22:10] Speaker 00:
Right.

[00:22:10] Speaker 02:
I'm just looking at the result.

[00:22:12] Speaker 00:
Your Honor, and I think it goes to show that there is certainly a reasonable range.

[00:22:18] Speaker 00:
And this range is not that wide.

[00:22:20] Speaker 00:
We're talking somewhere between 400, 490.

[00:22:24] Speaker 00:
And the, in particular, the Maryland case also takes... It's probably pretty large to Mr. Hickman.

[00:22:31] Speaker 03:
If it's $70 an hour, that's a lot of money for somebody of his GS level.

[00:22:39] Speaker 00:
And I acknowledge that, Your Honor.

[00:22:40] Speaker 00:
But at the same time, it is a range that would reasonably be expected to be found.

[00:22:47] Speaker 00:
for attorneys in- Sure.

[00:22:48] Speaker 03:
If the AJ had said, we find their charged rates too high because this is not what lawyers in DC usually charge for Boston litigations and have a good reason, then that might be affordable.

[00:23:03] Speaker 03:
But when the AJ arbitrarily plucks out a number from a Maryland litigation for what is clearly a DC firm for a Boston litigation, I don't see how that's anything but arbitrary.

[00:23:17] Speaker 00:
I understand the concern, Your Honor.

[00:23:20] Speaker 00:
First, I would point out that, again, this is a nationwide firm, not specifically practicing in D.C.

[00:23:25] Speaker 03:
Well, but that's your problem is, because they're a nationwide firm, but they're based in D.C., and we all know they're based in D.C., it's on their address, you can't just go to whatever jurisdiction you want it.

[00:23:36] Speaker 03:
I mean, he could have went to, like you said, Oklahoma, and come up with, like, $200 an hour, and that might have been Oklahoma rates.

[00:23:44] Speaker 03:
And if they have Oklahoma cases, maybe that's what they charge.

[00:23:47] Speaker 03:
But that's the definition of arbitrary.

[00:23:49] Speaker 03:
You have to explain some connection between the jurisdiction you're using the fees for and this litigation.

[00:23:56] Speaker 03:
And there's no connection between Maryland and Boston or Greenbelt and DC.

[00:24:02] Speaker 00:
Well, again, Your Honor, there isn't necessarily a nexus between the litigation and the fees charged.

[00:24:09] Speaker 00:
Because under this particular statute, it has to do with the customary practice area of the attorney.

[00:24:14] Speaker 00:
And in this case, as the administrative judge

[00:24:16] Speaker 00:
Very clearly indicated.

[00:24:17] Speaker 03:
The customary practice area of this firm is clearly Washington, D.C.

[00:24:21] Speaker 03:
Because that's where they're located.

[00:24:23] Speaker 03:
Well, Your Honor, I would disagree, given that the... The government put forth any evidence that this firm, even though they're located in D.C., generally practices in Maryland, or generally practices in Oklahoma, or generally practices elsewhere besides Washington, D.C.

[00:24:40] Speaker 00:
No, Your Honor.

[00:24:41] Speaker 00:
Frankly, in front of the MSPB, the government's dispute was with the fact that

[00:24:46] Speaker 00:
the fee application was for a rate that was significantly higher than the, so there really wasn't a lot of focus on that.

[00:24:54] Speaker 03:
The AJ would have been perfectly reasonable in saying, look, I'm not giving you Laffey matrix fees because you only billed him at a lower rate.

[00:25:00] Speaker 03:
You get the lower rate.

[00:25:02] Speaker 00:
Potentially, Your Honor, but the AJ is required to consider more than just the fee application.

[00:25:08] Speaker 00:
And he specifically said, I have no evidence before me of the reasonableness of this fee application rate

[00:25:15] Speaker 00:
Well, yes, he does.

[00:25:16] Speaker 04:
He has the Laffey rates.

[00:25:18] Speaker 00:
Well, but the Laffey rates, Your Honor, as he found, are significantly higher.

[00:25:21] Speaker 03:
Exactly.

[00:25:22] Speaker 03:
That's what makes it reasonable.

[00:25:24] Speaker 03:
They're charging less than what they would be normally entitled to as a DC firm.

[00:25:28] Speaker 00:
Not necessarily, Your Honor.

[00:25:29] Speaker 04:
Let me change to the focus a little bit.

[00:25:33] Speaker 04:
Certainly, Your Honor.

[00:25:35] Speaker 04:
To compensatory damages question.

[00:25:36] Speaker 00:
Yes, Your Honor.

[00:25:38] Speaker 04:
Let me pose a hypothetical.

[00:25:39] Speaker 04:
Supposing instead of Mr. Hickey, the same thing had been done to Mr. Green.

[00:25:46] Speaker 04:
And Mr. Green doesn't have the moral or psychological strength to withstand that continued harassment, and he kills himself.

[00:25:58] Speaker 04:
Compensatory damage is available to the estate?

[00:26:06] Speaker 00:
Probably, Your Honor.

[00:26:07] Speaker 00:
Frankly, I haven't seen a case where an estate is suing, but I would imagine that would certainly fall under a permanent

[00:26:16] Speaker 00:
not to make light of that particular hypothetical.

[00:26:22] Speaker 04:
No, because it was clearly designed to harass this individual.

[00:26:29] Speaker 04:
There's no question about that.

[00:26:30] Speaker 00:
Yes, Your Honor.

[00:26:31] Speaker 00:
And I think that proves the point of the administrative judge's distinction in this case, where the harms, for two reasons, the harms that Mr. Hickey presented

[00:26:46] Speaker 04:
were these global harms related to a whole bunch of different- His family relationships, all the things that you, that pretty clearly a supervisor intended to do to him.

[00:26:59] Speaker 00:
Well, Your Honor, what I was going to say is they were related to a lot of actions that were not found to be retaliatory actions by the MSPB.

[00:27:10] Speaker 02:
Like the hostile work environment allegation?

[00:27:12] Speaker 00:
The hostile work environment allegation, yes, Your Honor.

[00:27:14] Speaker 00:
There's also the sort of side issue of Mr. Hickey's concern for his safety with respect to some things that had happened with the confidential source.

[00:27:24] Speaker 00:
And that seems to be, based on his declaration, the source of his family, the large source of his family problems, particularly in that he indicated that because of this concern about his safety, his family lived several states apart.

[00:27:40] Speaker 00:
And that very specifically caused the administrative judge to

[00:27:44] Speaker 00:
limit the apparent harm caused by the actual unlawful actions because they couldn't clearly be tied to the harm that Mr. Hickey was alleging.

[00:27:59] Speaker 00:
The administrative judge did acknowledge that there certainly was some reputational harm, some emotional and family relationship harm.

[00:28:08] Speaker 04:
That's a pretty low number.

[00:28:09] Speaker 00:
It was, and Your Honor, the administrative judge

[00:28:12] Speaker 00:
supported that number with similar cases in which the harm frankly was not long-term, not permanent, and was tied to the actual unlawful actions taken by the agency.

[00:28:32] Speaker 00:
So that number is supported by the MSPB's precedent.

[00:28:39] Speaker 00:
In my last few seconds, I will very briefly turn to the consequential damages here.

[00:28:44] Speaker 00:
The discussion of whether or not Mr. Hickey was or was not entitled to per diem was frankly a red herring.

[00:28:49] Speaker 00:
This is about what his out-of-pocket expenses were, what he demonstrated that his out-of-pocket expenses were.

[00:28:55] Speaker 00:
And he provided no evidence that he incurred hotel fees, mileage, meals, et cetera.

[00:29:01] Speaker 00:
With that, I would ask that the court affirm the decision of the MSPB.

[00:29:05] Speaker 00:
Thank you, counsel.

[00:29:05] Speaker 00:
Thank you.

[00:29:09] Speaker 01:
Your Honor, I would simply point out that 19 months of sleeping on floors or sleeping in your car is not the same as other discrete claims that Mr. Hickey brought, such as saying they did this particular act of discrimination or retaliation against me on this particular day.

[00:29:26] Speaker 01:
These things are not fungible that one can be traded for another like bricks of Lego.

[00:29:31] Speaker 01:
19 months of punishment and separation from your family is devastating.

[00:29:36] Speaker 01:
Likewise, telling someone like Mr. Hickey a finite means that you don't get any compensation because you slept in your car, because you didn't stay in a hotel, there's no blood, no foul, is preposterous.

[00:29:53] Speaker 03:
You're arguing this as a consequential damages theory, or maybe as commensurate damages,

[00:29:58] Speaker 03:
consequential damages seems like damages actually incurred.

[00:30:02] Speaker 03:
If you think that he didn't properly get TDY allowances and per diem allowances based upon the applicable statutes and regulations, even though he didn't suffer actual damages, wouldn't his claim there be in the court of federal claims for breach of the money-managing statutes and regulations?

[00:30:23] Speaker 01:
It would, if I might, Your Honor.

[00:30:25] Speaker 01:
I'm about to run out of time.

[00:30:26] Speaker 01:
You can finish yours.

[00:30:28] Speaker 01:
It would, Your Honor, if it was not in the rubric of damages available under the WPA.

[00:30:38] Speaker 01:
And the WPA, just because the Court of Claims allows for contractual damages for the wage or for, I'm trying to remember the name of the act, it's the Backpay Act, does not mean that it's mutually exclusive that these damages wouldn't be recoverable under Title VII.

[00:30:53] Speaker 01:
Likewise, you can recover for wages.

[00:30:57] Speaker 01:
If I might just finish and wrap up.

[00:30:59] Speaker 01:
Yes, sir.

[00:31:00] Speaker 01:
The original fee decision was in 2017, November 2017, and the second fee decision was about six months later after the agency submitted its brief.

[00:31:13] Speaker 01:
So it wasn't in 2014.

[00:31:15] Speaker 01:
There wasn't that time difference as represented by counsel.

[00:31:19] Speaker 01:
I would finally say that the AJ below rejected my declaration and my firm's declaration of what we bill

[00:31:26] Speaker 01:
without even just explaining why when we said we'd met the standard, which is where we met the MSPB standard, he rejected Ms.

[00:31:33] Speaker 01:
Alden's affidavit as to what the reasonable rates were.

[00:31:36] Speaker 01:
Is that in the record?

[00:31:38] Speaker 01:
Yes.

[00:31:40] Speaker 01:
And he also basically rejected Mr. Hickey's and his wife's declarations as to what the undisputed damages were.

[00:31:47] Speaker 01:
AJ didn't take testimony.

[00:31:49] Speaker 01:
The agency didn't depose them, didn't take any discovery.

[00:31:53] Speaker 01:
The only evidence before the court was the evidence, and we cited it verbatim.

[00:31:57] Speaker 01:
I would vehemently disagree with the agency where it said he didn't draw a line.

[00:32:03] Speaker 01:
That's why I cited it at length here, because he said sleeping in my car and being separated from my family caused great emotional distress.

[00:32:12] Speaker 04:
Wrap it up.

[00:32:12] Speaker 01:
Wrap it up.

[00:32:13] Speaker 01:
I would submit that's it.

[00:32:15] Speaker 01:
Thank you, counsel.